Effective oversight and transparency are not enough, we need to shut down ICE's mass immigration detention machine.

By Eunice Cho, Senior Staff Attorney, ACLU National Prison Project; Patrick Taurel, Senior Staff Attorney, ACLU National Prison Project; and Aditi Shah, Borchard Fellow, ACLU National Prison Project

Every day, ICE locks up over 20,000 people in a sprawling nationwide network of more than 200 detention facilities. The ACLU believes that this system of mass incarceration of immigrants should be dismantled — it’s unnecessary and inhumane. For as long as ICE maintains its detention network, though, it has a responsibility to create an oversight system that is actually effective at detecting, addressing, and deterring abuse of detained people. Our analysis of recent ICE inspection documents shows that ICE’s inspection system remains ineffective at identifying violations by detention facilities and ensuring compliance with detention standards, allowing facilities with clear records of poor conditions, including some of the deadliest facilities, such as the Stewart Detention Facility in Georgia, to evade accountability.

Virtually all detention facilities are required to adhere to detention standards that establish consistent conditions of confinement and ensure minimum standards of care for people who are detained by ICE. ICE currently monitors compliance with these standards primarily through external audits performed by a private contractor called The Nakamoto Group. Nakamoto’s fitness to serve as ICE’s auditor has been called into question by multiple oversight bodies. In 2018, the Department of Homeland Security Office of Inspector General (OIG) found that Nakamoto’s “inspection practices are not consistently thorough.”

ICE employees in the field and managers at headquarters told OIG that Nakamoto inspectors “breeze by the [detention] standards” and do not “have enough time to see if the [facility] is actually implementing the policies.” They also described Nakamoto inspections as being “very, very, very difficult to fail.” One ICE official suggested these inspections are “useless.” The House Homeland Security Committee issued a similarly scathing critique of Nakamoto. In September 2020, the committee’s majority staff reported that Nakamoto “has demonstrated a lack of credibility and competence.”

We reviewed every inspection report that Nakamoto issued in 2021 and found that little has changed. The same problems identified by OIG and the House Homeland Security Committee continue to plague Nakamoto’s inspections.

First, virtually no facility fails their inspections. Even facilities that are deficient in 30 or more components receive a rating of “meets standards.” Moreover, we found that inspections fail to account for clear indications of poor conditions. For example, Nakamoto’s inspection of the Stewart Detention Center in Georgia found that the facility “meets standards,” identified only one deficient component in the standard of “Correspondence and Other Mail,” and stated that “there were no areas of concern or significant observation.” Yet more detained people have died at Stewart than any other ICE facility in the last four years; since May 2017, eight people have died in custody at Stewart. Felipe Montes, a 57-year-old man from Mexico, died there only a few weeks before Nakamoto’s inspection. Yet Nakamoto’s inspection failed to note any concerns about the provision of medical or mental health care or COVID-19 protocols at the facility.

Second, Nakamoto continues to conduct only pre-announced inspections, often remotely or partially remotely, making a meaningful audit all but impossible. Pre-announced inspections permit facilities to temporarily cure or mask deficiencies to pass inspection. (This is on ICE though, because they are the ones that put this requirement into Nakamoto’s contract.)

Third, Nakamoto’s detainee interviews remain flawed, often occurring in non-confidential settings where detainees will feel less free to speak their mind about detention conditions. We also found that detainee complaints are rarely taken seriously.

Finally, Nakamoto inspectors appear to continue to trust, rather than verify, the representations of jailers and ICE officers. For example, at the Prairieland Detention Center in Texas, one detainee housed in the Special Management Unit (SMU), which is how ICE refers to segregation or solitary confinement, “stated he had not seen an ICE officer while housed in the SMU.” Nakamoto accepted the facility’s documentation that “ICE officers routinely visit the SMU,” even though “[d]ocumentation that an ICE officer had visited this particular detainee was not available.”

These and other examples make clear that Nakamoto’s inspections lack integrity. As appropriators in Congress have indicated, it’s past time for DHS to terminate its contract with Nakamoto.

ICE’s detention oversight problem is ultimately bigger than Nakamoto. ICE must ensure that it holds facilities accountable for violating ICE’s own standards. A meaningful inspection and monitoring system requires rigorous inspections of facilities and a commitment from the agency to impose sanctions, including contract termination, for facilities that do not pass inspection. And the public deserves transparency. We need to know which standards detention facilities are failing to comply with, and what consequences, if any, ICE imposes on them.

Effective oversight and transparency, though, are not enough. When the Immigration and Naturalization Service — ICE’s precursor agency — first rolled out its detention standards, the then-head of the agency told the New York Times that the goal was to “provide safe, secure and humane conditions of detention.” That goal is based on the flawed premise that detention can be safe and humane. It cannot. ICE’s record of abuse, neglect, and death proves that point. Ultimately, ICE must shut down its mass immigration detention machine.